Argued October 16, 2013; decided November 14, 2013

Rocky Point Drive-In, L.P. v Town of Brookhaven, 93 AD3d 653, affirmed.

Rivera, J.

Rocky Point Drive-In, L.P. (Rocky Point), a landowner seeking to develop property located in the Town of Brookhaven (Town), appeals an order of the Appellate Division which reversed a declaratory judgment of the Supreme Court on the law and facts, and [*2]which determined that Rocky Point's site plan application should not be reviewed under a former, more favorable, zoning provision. We find no basis to overturn the Appellate Division's order and affirm.

Rocky Point owns a parcel of land approximating 17 acres (the parcel) in the Town. Over several years Rocky Point, and its predecessor in interest, Sans Argent, Inc. (Sans Argent), have tried unsuccessfully to secure approval from the Town to develop this parcel as a site for a 152,050-square-foot Lowe's Home Improvement Center (Lowe's Center).

The factual history is extensive but, as relevant here, ostensibly begins in 1997, when the Town adopted a comprehensive plan creating a new "commercial recreation" (CR) zoning classification.^[FN1] The plan cited the desire to draw visitors, and the potential to "attract new types of private recreation such as sports complexes, amusement and theme parks, movie theme parks, ice hockey and ice skating rinks." The parcel had been zoned as "J Business 2" (J-2), which permitted retail stores as of right, but did not permit "commercial centers" which were defined by Brookhaven Town Code as "[a]ny building or buildings . . . used by one (1) or more enterprises for a commercial purpose . . . where the proposed use occupies a site of five (5) acres or more." Accordingly, all of the parcel's previous uses—a drive-in movie theater and golf driving range—were nonconforming. Although the plan did not target the parcel, the parcel's previous uses would have been brought into compliance if it was rezoned to CR.{**21 NY3d at 735}

The Town had not taken any measures in pursuance of the CR classification, as per the comprehensive plan, until February 2000, when the Brookhaven Town Board (Board) discussed, for the first time, specifically rezoning the subject parcel to CR. The Board announced a date for a public meeting to be held on the issue. Shortly before the hearing, on March 2, 2000, Sans Argent submitted a site plan application to the Town for the Lowe's Center to be built on the parcel. The proposed Lowe's Center would not have complied with the CR zone classification. The Board thereafter held a public hearing to vote to rezone the subject property to CR. Sans Argent, aware of the impending vote, and seeking to avoid the rezoning, submitted a protest, triggering Town Law § 265 and its requirement that the zoning change pass by a super[*3]majority vote.^[FN2] Five of the seven Board members voted to rezone, thus falling short of the supermajority requirement.^[FN3] Nevertheless, the Town declared the parcel rezoned to CR and declined to continue processing Sans Argent's application.

Sans Argent then filed suit in Supreme Court, Suffolk County, challenging the Board's rezoning as invalid. While the suit was pending, the parties entered into an agreement under which respondents would continue processing Sans Argent's application if Sans Argent submitted a new site plan with an accompanying application for a use variance to the Zoning Board of Appeals (ZBA).

Respondents issued a notice of violation and on December 1, 2000, Sans Argent submitted a new site plan and application for a use variance. A few months later, in March, Supreme Court held null and void the Town's rezoning of the parcel, for failure to secure the requisite supermajority vote.

Shortly thereafter, the Town Board adopted a second resolution that rezoned the parcel to CR—again without the requisite supermajority. Sans Argent challenged this vote, and after commencement of a second action, Supreme Court declared the second rezoning null and void. In June 2002, the Town Board amended the Brookhaven Town Code to allow for a simple majority vote of approval over protests for rezoning of property, rather than a supermajority vote. Then, in October 2002, the{**21 NY3d at 736} Town adopted a resolution, for the third time, rezoning the parcel to CR.

Rocky Point, as the successor in interest to Sans Argent, filed the instant action seeking a judgment declaring that the site plan application was subject to review under the previous J-2 zoning classification because the Town had unduly delayed the review of the application. In 2004, Supreme Court granted the Town summary judgment, and the Appellate Division, Second Department, reversed, finding that triable issues of fact existed as to whether special facts warranted application of the J-2 zoning classification, and concluding that there was proof indicating selective enforcement of the Town's zoning provision (37 AD3d 805 [2d Dept 2007]).

At a non-jury trial, Rocky Point introduced several various site plan applications submitted to the Town between 1986 and 2003. All, it claimed, proved the Town was selectively [*4]enforcing the CR classification. Supreme Court agreed that the Town treated Rocky Point's application differently from other applications, and that there was significant delay in the process. Therefore, special facts warranted the application of the previous J-2 zoning classification to Rocky Point's application. The Town appealed and the Second Department reversed, finding Supreme Court's determinations were not supported by the evidence adduced at trial (93 AD3d 653, 654 [2d Dept 2012]). We granted Rocky Point leave to appeal (19 NY3d 815 [2012]) and now affirm.

As a general matter, a case must be decided upon the law as it exists at the time of the decision (see Matter of Pokoik v Silsdorf, 40 NY2d 769, 772 [1976]). In land use cases, the law in effect when the application is decided applies, regardless of any intervening amendments to the zoning law (id. at 773). Rocky Point seeks to avoid this rule and have the zoning law in effect at the time it submitted its application apply to its request, arguing it falls within the "special facts" exception to the general time of decision rule.

Under the special facts exception, where the landowner establishes entitlement as a matter of right to the underlying land use application—here, a "site plan"—the application is determined under the zoning law in effect at the time the application is submitted (id. at 772, citing Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494 [1941], and Matter of Rosano v Town Bd. of Town of Riverhead, 43 AD2d 728 [2d{**21 NY3d at 737} Dept 1973]). In order for a landowner to establish entitlement to the request as a matter of right, the landowner must be in "full compliance with the requirements at the time of the application," such that "proper action upon the permit would have given [the landowner] time to acquire a vested right" (Pokoik, 40 NY2d at 773, citing Marsh v Town of Huntington, 39 AD2d 945 [2d Dept 1972], and Matter of Golisano v Town Bd. of Town of Macedon, 31 AD2d 85 [4th Dept 1968]). In addition to showing entitlement to the request as a matter of right, the landowner must also show "extensive delay[ ] indicative of bad faith" (Matter of Alscot Inv. Corp. v Incorporated Vil. of Rockville Ctr., 64 NY2d 921, 922 [1985]), "unjustifiable actions" by the municipal officials (Pokoik, 40 NY2d at 773), or "abuse of administrative procedures" (id. ["the village improperly delayed reviewing the application and the board presented unsatisfactory reasons for denial, resulting in the disregard of petitioner's rights"]).

As the record establishes, Rocky Point fails to meet the threshold requirement that it was entitled to the requested land use permit under the law as it existed when it filed its application. Rocky Point does not dispute—and it cannot—that it was out of compliance with the zoning classification in effect when it submitted the application. At that time, a substantial portion of the parcel was zoned J-2, which did not permit "commercial centers" of the type Rocky Point sought to build. That is, J-2 prohibited commercial buildings that "occup[y] a site of five (5) acres or more." The proposed Lowe's Center, as planned, exceeded this spatial limit.

Rocky Point argues that the special facts exception should apply to its case even though it does not technically meet the J-2 requirements as of right, because the Town historically ignored the zoning requirements. According to Rocky Point, the Town targeted [*5]Rocky Point for selective enforcement, seeking to subject Rocky Point to the zoning requirements while intentionally failing to impose them on similarly situated applicants. Rocky Point argues, therefore, it should not be held to the strict language of the zoning requirements.

The Appellate Division rejected this claim, based on a lack of factual support in the record (93 AD3d at 654). When the Appellate Division decides that a factual finding is against the weight of the evidence, that is itself a new finding of fact (Cohen v Hallmark Cards, 45 NY2d 493, 498 [1978]). In such case, our review of the Appellate Division's decision is limited; we{**21 NY3d at 738} review the record to determine which factual findings "more nearly comport with the weight of the evidence" (Matter of State of New York v Daniel F., 19 NY3d 1086, 1087 [2012]).

The Appellate Division, reviewing the facts, disagreed with the Supreme Court's conclusion that "[respondents] intentionally and in bad faith delayed processing [Rocky Point's] site plan application, and selectively enforced the prohibition against commercial centers in a J-2 zoning district against [Rocky Point]" (93 AD3d at 654). The record clearly demonstrates that similarly situated applicants referred to by Rocky Point were not similarly situated at all; they either fell within an exception or were within compliance with the J-2 zoning classification. Thus, the Appellate Division's finding more nearly comports with the weight of the evidence.

Rocky Point also argues that the Appellate Division erred when it applied a "bad faith" requirement rather than a negligence standard to its claim. In support of this argument Rocky Point asserts that we have previously held that negligence may trigger application of the special facts exception. Rocky Point places significant reliance on our decision in Matter of Faymor Dev. Co. v Board of Stds. & Appeals of City of N.Y. in support of its argument. In Faymor the applicant would have had, in the absence of municipal wrongdoing, a vested right (45 NY2d 560, 566 [1978]). Here, as Rocky Point concedes, it cannot meet the zoning requirements and did not have a vested right. Rocky Point has failed to meet the threshold requirement of entitlement as of right, and we have no reason to upset the Appellate Division's factual findings of a lack of record support for selective enforcement by the Town, because the special facts exception is inapplicable to this case, under any standard.

Accordingly, the order of the Appellate Division should be affirmed with costs.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam concur.

Order affirmed, with costs.